Friday, May 02, 2008

I'm studying for my Constitutional Law final. This is my second semester of Con Law, or as I like to call it, Con Law II: The Sequel. I have a professor who is eerily brilliant about all things Constitutional, particularly when they involve ye olde common law jurisprudence rearing its head in the modern world (cf. writ of habeas corpus/Guantanamo).

I have learned a lot about Con Law this year, and I am terribly interested in learning more, but every once in a while I feel frustrated. Not necessarily by the issues, such as religion in schools (Get. It. Out!) or all the hoops one has to jump through to keep abortion safe-legal-rare (although on some level I rather admire the whole trimester theme/scheme as it really fits with my sensibilities about terminating a pregnancy, namely that the blastocyst freshly implanted in the uterine wall is not in any way shape or form -- literally -- the same as the viable fetus at eight months.) (And by the way, it's not a "fetus" in the first few weeks. Why doesn't anyone ever call out the wackjob anti-abortion peoples on their misuse of the term?)

But I digress. This is not about abortion. This is about the fact that Constitutional Law is a bunch of crap when it comes to equality for women. (So then maybe it is about abortion in some weird way?)

Why? I'll tell you why: what's up with intermediate scrutiny? I mean, I appreciate all that Ruth Bader Ginsburg did and that she was in a tough situation when the Court would not apply strict scrutiny to gender-based distinctions. But what a bunch of crap that is. For those who need a primer, basically (REALLY basically) laws violating equal protection get varying degrees of scrutiny. The court had "long" ago decided that a racial distinction must be examined with "strict scrutiny" to see if it should be upheld, which it can only be if it serves a compelling government interest. (Example: the University of Michigan can include race in its admissions decision-making to serve the compelling government interest of diversity in the school.) But if the distinction is based on something less egregious, say, an economic class distinction, then the court employs less scrutiny, subjecting the law only to a "rational basis" test. (Is there some rational basis for the law related to a legitimate - though not compelling - government interest?)

But gender? Try as they might, the ACLU and other rights activists in the 1970s couldn't get the Court to apply strict scrutiny to gender-based discrimination, so in the end they finally got the Court to invent a new tier, intermediate scrutiny, thus compromising. I'll say they compromised. Why should a law/policy discriminating against women be subject to less scrutiny than a law/policy discriminating against [insert race here]?

It's utter crap, and I've been thinking about it a lot today as I review for my exam. I also think it's quite crap that "natural mothers" and married fathers get more assumed rights than "unwed fathers" - and not just in custody battles, but in everything. I have more to say about this, but I need to get back to studying.

No wonder there's a bandwagon of evangelical fervor for Obama and such backlash against Hillary. It's the law of the land.